Courts, Government, and Originalism

Despite its popularity south of the border, originalism hasn’t had much of a purchase in Canadian constitutional thinking. One reason, no doubt, is the power of what we think is the example of the “Persons Case,” Edwards v. Canada (Attorney General), [1930] A.C. 124, generally taken to be a decisive rejection of originalist constitutional interpretation. It wasn’t exactly that, as I have argued here, but Canadian constitutional theory lives in the shade of its “living tree” all the same. But there might be other factors contributing to our rejection of originalism. A passage from Judge Jeffrey Sutton’s majority opinion for the U.S. Court of Appeals for the 6th Circuit* upholding bans on same-sex marriage, which Josh Blackman describes as “a pithy but deep understanding of originalism,” brings one of these other factors to mind.

Judge Sutton writes that the original meaning of a constitutional provision, they way “it was understood by the people who ratified it,” (17) is the first consideration in constitutional interpretation. He explains that

[i]f we think of the Constitution as a covenant between the governed and the governors, between the people and their political leaders, it is easy to appreciate the force of this basic norm … —that the originally understood meaning of the charter generally will be the lasting meaning of the charter. When two individuals sign a contract to sell a house, no one thinks that, years down the road, one party to the contract may change the terms of the deal. That is why the parties put the agreement in writing and signed it publicly—to prevent changed perceptions and needs from changing the guarantees in the agreement. So it normally goes with the Constitution: The written charter cements the limitations on government into an unbending bulwark, not a vane alterable whenever alterations occur—unless and until the people, like contracting parties, choose to change the contract through the agreed-upon mechanisms for doing so. … Any other approach, too lightly followed, converts federal judges from interpreters of the document into newly commissioned authors of it. (17-18)

Now we may be inclined to dismiss the analogy between a constitution, meant to apply to people not even born at the time of its ratification, over decades and even centuries, and a contract of sale executed months after its conclusion and subject to a statute of limitations. But whether or not there is, nonetheless, some truth to it, or a constitution is more properly analogized to a “higher law” that binds the “governors” is not important for my purposes now. What I want to do instead is consider an premise that underlies Judge Sutton’s argument, but which is unstated because it would, I think, be universally accepted in the United States ― and which we in Canada tend not to share.

This premise is that judges are among the “governors” with whom the people “contract” or whom they bind by ratifying a constitution. If they are, then obviously letting them re-interpret the constitution, under whatever pretext, means letting one party to the agreement modify its terms unilaterally, or allowing the “governors” to be a law unto themselves. That we be unfair and, considering the power of the “governors” over the governed, outright dangerous. It is important to hold the “governors” to the original bargain struck with them, or bound by the law imposed on them. Originalism is intended to do that.

Yet Canadian constitutional thinking, I believe, does not see courts that way. Of course, we know that courts are a part of government ― indeed, that judges were, at first, servants of the Crown rather than a separate “branch” of government. But generally speaking, that’s not how we think of them today. We tend to regard them outside arbiters that stand between the government (i.e. the legislatures and the executives) and the citizens. Indeed, we might even tend think of them as our agents vis-à-vis what the Americans call the “political branches” ― that’s why many Canadians (and indeed at least some of our “governors”!) ― think of the Canadian Charter of Rights and Freedoms as having transferred power to the people, and not just the courts. But, of course, if the judges are not among the “governors” whom we fear and with whom we make a deal or whom we try to constrain, there is little reason for us to wish to limit their power to reinterpret the constitution. If, a fortiori, they are our agents vis-à-vis the “governors”, we probably want them to reinterpret the constitution, and it is the “governors” who ought to be originalists.

As for the question of who has it right, I’m not sure that it can really be answered. Indeed I’m not even sure it must be the same in different constitutional systems. But even if it is, it’s worth noting that both views of courts have something going for them. Courts are a part of government in the sense that they wield ― at least so long as the executive is inclined to enforce their decisions ― a coercive power over citizens, whether considered individually or, if judicial review of legislation is possible, collectively. At the same time, I think it’s fair to say that, so long as they remain independent from the popular will, courts are not a part of government like the others. So long as it is easier for individual citizens to make their voice heard through the courts than through the legislatures, the view that courts are our agents vis-à-vis the (other) “governors” rather than our opponents and that we want to empower them more than constrain them is at least plausible. So, pick your own view. Just know that it’s not the only possible, or even plausible one.

*As usual, I express no views on the correctness of an American decision as a matter of American law. All I can say is that if this decision is indeed correct ― something that Ilya Somin and Michael Dorf, not to mention Judge Richard Posner and many others, would dispute ― then I’m happy that Canadian law is different.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

4 thoughts on “Courts, Government, and Originalism”

  1. Leonid,

    There was an “originalist moment” in Canadian constitutional history (and might be one again) It just had a different ideological colouration than the Robert Bork/Ed Meese movement in the 1970s. The key figure here is Frank Scott, who had a big impact on the central Canadian law schools and on Pierre Trudeau and Bora Laskin in particular. Especially after the New Deal cases, he critiqued the Privy Council’s jurisprudence as departing from the original understanding of the Fathers of Confederation. Interestingly, he did not think this was inconsistent with Edwards or the “living tree”. Of course, progressives of that era did think of the British judges as a branch of government that was hostile to what they were trying to do.

    I disagree with you that there is a broad consensus that judges are above the battle and stand between the people and the government. This is the official rhetoric of the court party, perhaps, but there is a counter-view that the elected government is responsible to the people and the judges are imposing an alien ideology of wealthy, educated elites. The counter-view has left and right versions. Allan Blakeney told me, “The Constituion is a living tree, but that does not give the Court the right to uproot it and plant a different species.”

    I think the lack of interest in originalism since the Charter in Canada, as compared to all the noise in the United States, stems more from how close we still are in time to the framers of the 1982 document. As long as Barry Strayer, Jean Chretien and Roy Romanow are wondering among us, it isn’t particularly appealing for people on the right to appeal to the founders. The Canadian left looks very much to the American left, and so doesn’t like the rhetoric of originalism.

    Things may be very different in a generation or two.

    1. I’ve read some of Scott’s articles from that period. But the moment, if it was one, came and went. Unsurprisingly, because the welfare state Scott was demanding was built, for better or worse.

      The “court party”? Well, it ultimately includes the Harper government, which has huffed and puffed, and complied with everything the SCC has decided ― and, as I and others have pointed out, not even tried to create an alternative. Peter MacKay is no Edwin Meese, and Marc Nadon is no Robert Bork. And of course there is no Federalist Society here, for better or worse. So it’s not clear to me who actually holds the “counter-view” that you describe.

      Anyway, I stand by my analysis of the present. What was the case 70 years ago and what might be 70 years hence isn’t really my concern here.

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